Supreme Court | Supreme Court preview: The first big abortion case in six years involves the risky RU-486 drug

Leslie Wolbert has first-hand experience with the abortion drug RU-486. She took the drug in 2006 and experienced “the worst pain I’ve ever felt in my life.” She was vomiting and “bleeding like I never knew possible.” Three days after taking the second pill in the drug regimen, in the midst of her pain, she decided to take a hot shower: she began losing blood again and noticed the drain was clogged. Then she realized: “It was my baby that was clogging the drain of the shower. … I flushed it down the toilet. … It was even more horrifying than it sounds.”

Wolbert recounts her story in an affidavit to the Supreme Court concerning Cline v. Oklahoma Coalition for Reproductive Justice, a major case that has so far garnered little attention. The case involves an Oklahoma law that regulates medical abortions through the RU-486 drug regimen, and it’s the first major abortion case to reach the Supreme Court since the 2007 decision in Gonzalez v. Carhart upheld a federal ban on partial-birth abortion. It’s also only the second case, after Gonzalez, since Catholic Justice Samuel Alito replaced Justice Sandra Day O’Connor, who sided with a number of opinions upholding and reinforcing Roe v. Wade.

In December 2012, the Oklahoma Supreme Court struck down the RU-486 law, and the state appealed, saying the ruling conflicted with Supreme Court precedent allowing state regulation of abortion. The Supreme Court took up the case, while also asking the Oklahoma court to elaborate on its decision, which was only three paragraphs long. Once the high court receives answers from the state court, it will either move forward with scheduling arguments or it could respond to the state court without hearing arguments. This is the first time the court has taken a case on chemical abortions.

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The major Supreme Court decisions on abortion post-Roe have allowed states to craft their own restrictions on abortion with an exception for the life or health of the mother. Those regulations must not pose an “undue burden” on a woman’s ability to obtain an abortion before a baby is viable. In the last few years, state legislatures have passed stronger restrictions on surgical abortion, and abortion providers see chemical abortions as an alternative.

“Clearly the case involves chemical abortion ... but what is at stake here is also the state’s ability to regulate an abortion procedure,” said Mailee Smith, counsel for Americans United for Life who is also counsel for Oklahoma’s legislators before the Supreme Court. AUL provided the model legislation that became Oklahoma’s medical abortion law. “What we’ll see is: Did Justice [Anthony] Kennedy mean it?” she said. Kennedy, who supports Roe, also wrote the decision upholding the ban on partial-birth abortion.

RU-486 is a two-part abortion drug, and the only FDA-approved medical abortion technique. Pregnant women first swallow a Mifeprex pill to abort the baby, and then the next day take another pill, misoprostol, to simulate labor and expel the baby. The FDA approved Mifeprex as an abortifacient in 2000 with a number of warnings and restrictions for its use. But the FDA doesn’t enforce drug restrictions, so doctors who go “off-label” aren’t breaking laws. With this law, the state of Oklahoma becomes the FDA’s enforcer, prohibiting doctors from “off-label” uses of RU-486. It’s illegal now, for example, to prescribe the drug past seven weeks of pregnancy, and the mother must return to the pill provider’s office for follow-ups after the abortion.

Linda Greenhouse, Supreme Court commentator for The New York Times, called medical abortion “the ultimate in women’s reproductive empowerment,” because women can administer the two-part drug on their own. Some parents of women who have died from RU-486 might disagree, because in the isolation of taking the drug women don’t know how to address complications that arise. The FDA has documented eight women who died from bacterial infections after taking the drug without following its regimen.

A brief submitted to the Supreme Court records stories from women who have taken RU-486, such as Wolbert, as well as their parents who have seen the effects. Monty Patterson’s daughter Holly died at age 18 after taking the RU-486 regimen in 2003. Patterson has since found other parents whose daughters also died after taking the drug, and started a website to highlight its dangers. “I do not want to see any other family go through what we have,” Patterson said in an affidavit submitted to the Supreme Court. Patterson has not taken a side in the abortion debate: he says he has no position on whether abortion should be legal, but he thinks RU-486 is dangerous and should be taken off the market.

The FDA, in approving Mifeprex, refused to allow the drug company to include instructions for using the drug at home. Still, Planned Parenthood affiliates often allow women to administer the drugs at home. Abby Johnson, a former Planned Parenthood worker and now a pro-life activist, submitted an affidavit to the court about taking the RU-486 regimen herself. She was in severe pain and vomited and bled profusely for 12 hours. She said she continued to lose large amounts of blood for eight weeks.

Planned Parenthood had not informed her of the side effects ahead of time, saying the drugs would give her a “heavy period.” When she called Planned Parenthood to explain her side effects, a nurse told her, “That is not abnormal.” When she went back to work at Planned Parenthood, she discouraged women from doing medical abortions. “I hated that we were pushing it at all of our clinics,” she said. She noted that when she got her tonsils out, her doctor informed her of all the risks, however far-fetched, ahead of time, which never happened ahead of her medical abortion.

When a woman goes through a medical abortion, “the psychological problems are greater because of her active involvement in it and being more likely to see the expelled baby,” said Linda Boston Schlueter, who wrote the brief for this case that included the affidavits from women who had used RU-486. Schlueter has a long history with abortion cases before the Supreme Court: She filed the brief the court cited in its 2007 partial-birth abortion decision, and others before that. She said the heart of this case is whether the court will accept “reasonable regulations” of abortion and ensure that women have “full and accurate information” before aborting.

“It’s hard to believe [the FDA guidelines are] an undue burden,” Schlueter said. “You’ll potentially have more people going through this process and they need the protection.”

More Supreme Court cases to watch

McCullen v. Coakley: The court will hear a case on a Massachusetts law that establishes a buffer zone around abortion centers, only allowing staff, patients, and emergency personnel within a radius of the building. Pro-life counselors have said the law violates their free speech rights. The court has not yet set a date for arguments for this case.

Town of Greece v. Galloway: This is a case on whether public officials can open public meetings with prayer. Greece, N.Y., is a mostly Christian town, so Christians often led opening prayers at public meetings, although any religious leader could offer a prayer. A local resident said the prayers amounted to establishment of religion, and a federal appeals court agreed. The court will hear the case Nov. 6.

National Labor Relations Board v. Noel Canning: This case will clarify the president’s recess appointment power, which President Barack Obama has used regularly because the Senate has been slow or unwilling to confirm appointees. At issue in particular are Obama’s recess appointments to the National Labor Relations Board, which the D.C. Circuit Court ruled unconstitutional at the beginning of the year. The Supreme Court will decide under what circumstances the president can make recess appointments.

Also: The New Mexico couple whom the state supreme court said had discriminated in refusing to photograph a gay commitment ceremony has appealed the decision to the Supreme Court. The court is also likely to hear one of the contraceptive mandate cases sometime this term.